United States v. Butler

95 F. App'x 896

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2004
• Docket: No. 01-50052; D.C. No. CR-96-00035-RT-1
• Status: Published

Opinion

MEMORANDUM

**

Elijah Butler appeals his jury trial conviction for conspiracy and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Butler contends that the district court abused its discretion when it denied his motion for a mistrial (and, in the alternative, to dismiss a juror) which Butler made after a juror revealed to the court that she was robbed at gunpoint one night during her jury service. We disagree. The district court investigated the incident, and carefully questioned the affected juror as well as the other jurors with whom she had discussed the incident. See Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir.1998) (en banc) (stating that “[a] court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances”). The court’s finding that each of these jurors was unbiased was not clearly erroneous, and it did not abuse its discretion in denying both the motion for a mistrial and the motion to have the affected juror removed from the case. See United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989) (holding that the district court did not err in faffing to discharge a juror or declare a mistrial, and noting that the trial judge is in the “best position” to make such judgments).

Butler next argues that district court plainly erred by constructively amending Count II of the indictment because its instruction on that charge did not include the date of the offense or the amount of drugs involved. We are not persuaded.

The court’s instruction on Count II contained all the essential elements necessary to prove a violation of 21 U.S.C. § 841(a)(1). See United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir. 1999). The failure to include surplusage from an indictment in an instruction is not error because only the essential elements of a charge need to be proved at trial. See United States v. Pang, 362 F.3d 1187, 1193-94 (9th Cir.2004).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.